Reservation in Central Government Services – Constitutional and Legal Provisions, Evolution of the Scheme of Reservation & Institutional Safeguards
Constitutional and Legal Provisions
1.1 Objective of providing reservations to the Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs) in services is not only to give jobs to some persons belonging to these communities. It basically aims at empowering them and ensuring their participation in the decision making process of the State. Justice B.P. Jeevan Reddy, while delivering the majority judgement in the matter of Indra Sawhney & Ors Vs. UOI & Ors, observed that public employment gives a certain status and power, besides the means of livelihood. The Constitution has, therefore, taken special care to declare equality of opportunity in the matter of public employment. Keeping the broader concept of equality in view, Clauses (4) and (4A) of Article 16 of the Constitution declare that nothing in the said Article shall prevent the State from making any provision for reservation of appointments or posts in favour of backward class of citizens which in the opinion of the State is not adequately represented in the services under the State. Article 16 of the Constitution and also Article 335 which have direct bearing on reservation in services are reproduced below:
16 (1) There shall be equality of
opportunity for all citizens in matters relating to employment or
appointment to any office under the State.
(2) No citizen shall, on grounds only of
religion, race, caste, sex, descent, place of birth, residence or any of
them, be ineligible for, or discriminated against in respect of, any
employment or office under the State.
(3) Nothing in this article shall prevent
Parliament from making any law prescribing, in regard to a class or
classes of employment or appointment to an office under the Government
of, or any local or other authority within, a State or Union territory,
any requirement as to residence within that State or Union territory
prior to such employment or appointment.
(4) Nothing in this article shall prevent
the State from making any provision for the reservation of appointments
or posts in favor of any backward class of citizens which in the
opinion of the State, is not adequately represented in the services
under the state.
(4A) Nothing in this article shall
prevent the State from making any provision for reservation in matters
of promotion, with consequential seniority, to any class or classes of
posts in the services under the State in favor of the Scheduled Castes
and the Scheduled Tribes which, in the opinion of the State, are not
adequately represented in the services under the State.
(4B) Nothing in this article shall
prevent the State from considering any unfilled vacancies of a year
which are reserved for being filled up in that year in accordance with
any provision for reservation made under clause (4) or clause (4A) as a
separate class of vacancies to be filled up in any succeeding year or
years and such class of vacancies shall not be considered together with
the vacancies of the year in which they are being filled up for
determining the ceiling of fifty per cent reservation on total number of
vacancies of that year.
(5) Nothing in this article shall affect
the operation of any law which provides that the incumbent of an office
in connection with the affairs of any religious or denominational
institution or any member of the governing body thereof shall be a
person professing a particular religion or belonging to a particular
denomination.
335. The claims of the member of the
Scheduled Castes and the Scheduled Tribes shall be taken into
consideration, consistently, with the maintenance of efficiency of
administration in the making of appointments to services and posts in
connection with the affairs of the Union or of a State.
Provided that nothing in this article
shall prevent in making of any provision in favor of the members of the
Scheduled Castes and the Scheduled Tribes for relaxation in qualifying
marks in any examination or lowering the standards of evaluation, for
reservation in matters of promotion to any class or classes of services
or posts in connection with the affairs of the Union or of a State.
1.2 Besides, Article 46 provides that the State shall promote with
special care the educational and economic interests of the weaker
sections of the people, and, in particular, the Scheduled Castes and
Scheduled Tribes, and shall protect them from social injustice and all
forms of exploitation.1.3 Articles 341 and 342 of the Constitution which define as to who would be Scheduled Castes and Scheduled Tribes with respect to any State or Union Territory are quoted below:
341. (1) The President may with respect
to any State or Union territory, and where it is a State after
consultation with the Governor thereof, by public notification, specify
the castes, races or tribes or parts of or groups within castes, races
or tribes which shall for the purposes of this Constitution be deemed to
be Scheduled Castes in relation to that State or Union territory, as
the case may be.
(2) Parliament may by law include in or
exclude from the list of Scheduled Castes specified in a notification
issued under clause (1) any caste, race or tribe or part of or group
within any caste, race or tribe, but save as aforesaid a notification
issued under the said clause shall not be varied by any subsequent
notification.
342(1) The President may with respect to
any State or Union Territory, and where it is a State after consultation
with the Governor thereof, by public notification, specify the tribes
or tribal communities or parts of or groups within tribes or tribal
communities which shall for the purpose of this Constitution be deemed
to be Scheduled Tribes in relation to that State or Union Territory, as
the case may be.
(2) Parliament may by law include in or
exclude from the list of Scheduled Castes specified in a notification
issued under clause (I) any caste, race or tribe or part or group within
any caste, race or tribe, but save as aforesaid a notification issued
under the said clause shall not be varied by any subsequent
notification.
1.4 The Constitution does not define Other Backward Classes. However,
in pursuance of the judgment of Supreme Court in Indira Sawhney’s case,
the Government enacted the National Commission for Backward Classes
(NCBC) Act in April, 1993. As per Section 2 of the NCBC Act, “Backward
classes” means such backward classes of citizens, other than the
Scheduled Castes and Scheduled Tribes, as may be specified by the
Central Government in the lists. For the above purpose, Section 2 also
defines “lists” as lists prepared by the Central Government for
providing reservation in appointments to backward classes of citizens,
which, in its opinion are not adequately represented in services, under
the Government of India and any local or other authority. The Ministry
of Social Justice and Empowerment has notified the lists of Castes /
Communities which are treated as Other Backward Classes.1.5 It may be noted that the Constitution imposes inter-state area restrictions so that the people belonging to the specific community residing in a specific area, which has been assessed to qualify for the Scheduled Castes or Scheduled Tribes status, only benefit from the facilities provided for them. Similar restrictions are applicable to the OBCs also. Since the people belonging to the same caste but living in different States / Union Territories may not necessarily suffer from the same disabilities, it is possible that two persons belonging to the same caste but residing in different States/ U.Ts may not both be treated to belong to SC/ST/OBC. Thus the residence of a person in a particular locality assumes a special significance. This residence has not to be understood in the literal or ordinary sense of the word. On the other hand it connotes the permanent residence of a person on the date of the notification of the Presidential Order scheduling his caste/tribe in relation to that locality.